The Second Circuit has preserved an important path to a bond hearing for certain immigrants who entered the United States without inspection, lived here for years, and were later arrested by immigration authorities.
On September 25, 2026, the U.S. Court of Appeals for the Second Circuit denied the government’s request to rehear Barbosa da Cunha v. Freden en banc. That leaves the court’s April 2026 panel decision in place as binding precedent in New York, Connecticut, and Vermont.
The ruling does not require the government to release every affected detainee. It does, however, reject the government’s position that all such individuals are automatically subject to mandatory detention without an opportunity to seek bond.
The Dispute: INA §235 or INA §236?
The case concerned two different immigration detention statutes.
INA §235 generally governs certain people seeking admission to the United States. When that statute applies, detention may be mandatory and an Immigration Judge may lack authority to conduct an ordinary bond hearing.
INA §236(a), by contrast, generally authorizes discretionary detention during removal proceedings. Under the existing regulations, a person detained under §236(a) may request a bond hearing before an Immigration Judge.
The difference is substantial: one classification can eliminate access to an ordinary bond hearing, while the other allows the detainee to ask an Immigration Judge for release on bond.
What Happened in Barbosa da Cunha?
The petitioner entered the United States without inspection approximately two decades before ICE arrested him. The government classified him as an applicant for admission subject to mandatory detention under INA §235(b)(2)(A), even though he had not been apprehended while entering the country or shortly afterward.
The Second Circuit rejected that interpretation. It held that §235(b)(2)(A) applies only when a person is both an “applicant for admission” and actually “seeking admission.” A person who entered years earlier and was later arrested inside the United States was not seeking to enter the country at the time of arrest.
The court concluded that the petitioner’s detention was governed by INA §236, which entitled him to seek a bond hearing under the current regulatory framework.
When the government sought rehearing by the full Second Circuit, a majority of the court declined. The panel decision therefore remains controlling within the circuit.
Who May Benefit From the Ruling?
The decision may help a detainee who:
- Entered the United States without inspection;
- Was not apprehended at or near the time of entry;
- Lived in the United States for a substantial period before being arrested by ICE;
- Is being detained under INA §235 as an “applicant for admission”; and
- Is not independently subject to another mandatory-detention provision, such as INA §236(c).
Each requirement matters. A person may still face mandatory detention for a separate reason, including certain criminal grounds. The decision therefore requires a case-specific review of the Notice to Appear, custody documents, immigration history, criminal history, and the government’s asserted detention authority.
A Bond Hearing Is Not the Same as Release
The ruling creates an opportunity to request bond; it does not guarantee that bond will be granted.
At a bond hearing, the Immigration Judge may consider issues such as danger to the community, flight risk, criminal history, family ties, employment, prior immigration compliance, and the strength of the person’s available relief from removal. The government may oppose release, and either party may have appellate options.
Strong bond preparation may include:
- A stable residential address;
- A financially responsible sponsor;
- Evidence of family and community ties;
- Employment history or a prospective job;
- Criminal dispositions and evidence of rehabilitation;
- Proof of eligibility for immigration relief; and
- A practical plan for attending all future hearings.
What If ICE or the Immigration Court Refuses a Bond Hearing?
The Second Circuit also preserved the use of habeas corpus to challenge detention under the wrong statutory provision. In Barbosa da Cunha, the federal district court ordered the government to provide a constitutionally adequate bond hearing or release the petitioner, and the Second Circuit upheld the court’s authority to grant that form of relief.
For an eligible detainee, a federal habeas petition may therefore be an option when ICE or EOIR incorrectly applies §235 and refuses access to a bond hearing. Habeas litigation is separate from the underlying removal case and should be evaluated promptly because detention cases often move quickly.
The Geographic Limitation Is Important
The decision is binding in the Second Circuit: New York, Connecticut, and Vermont. It is not automatically controlling in California, Idaho, or other jurisdictions. Courts elsewhere have reached different conclusions, and the issue may ultimately require Supreme Court review.
Individuals detained outside the Second Circuit should not assume that the same rule applies. Counsel must review the controlling law in the location of detention and determine whether the Second Circuit’s reasoning can be used persuasively.
The Practical Takeaway
How the government classifies a detainee can determine whether that person receives a meaningful opportunity to seek release. For long-term residents arrested years after an entry without inspection, Barbosa da Cunha confirms that mandatory detention under INA §235 is not automatic within the Second Circuit.
Families should have counsel examine the detention statute immediately. A person wrongly classified under §235 may have a path to a bond hearing and, if administrative procedures do not provide relief, potentially to federal habeas review.
For almost three decades, Bolour/Carl Immigration Group has been a Los Angeles immigration law firm that represents individuals in removal proceedings and advises families regarding immigration detention, bond, and federal-court options.
The available strategy depends heavily on the place of detention and the specific statutory basis asserted by the government, so prompt review is essential. If a family member is facing detention, you can contact us right away to discuss the case.
Primary source: Barbosa da Cunha v. Freden, No. 25-3141 (2d Cir. Sept. 25, 2026)
This article provides general information and does not constitute legal advice. Detention authority, bond eligibility, and federal-court remedies depend on the individual facts and controlling law in the place of detention.
